Dismissal due to sickness

Long-term or frequent sickness absence can be a fair reason for dismissal. Most commonly, the statutory reason for dismissal will be capability. However, in Wilson v Post Office [2000] IRLR 834, the Court of Appeal held that an employee could be fairly dismissed for “some other substantial reason” when attendance fell below the level required by an agreed attendance procedure (see Chapter 10: Fair reasons for dismissal).

However, it is important to note that even where a negotiated absence procedure is in place, employers must still investigate the circumstances surrounding the absence, including the reason for each absence, and must give the employee an opportunity to explain. A dismissal will not be fair just because the employee has breached the terms of an agreed absence procedure. There may also be disability discrimination. An employer will be expected to make reasonable adjustments to accommodate disability-related absence (see page 172).

The fact that an employee’s absence is due to an accident, having been a victim of a crime, or even a work-related injury will not prevent their fair dismissal due to sickness absence. However, the employer should take into account the cause of the illness when deciding whether to dismiss (Frewin v Consignia EAT/0981/02), and if the injury or illness causing the absence is work-related, the employer should not dismiss without first investigating all the alternative ways of avoiding the dismissal, described by the Court of Appeal in McAdie v Royal Bank of Scotland [2007] EWCA Civ 806, as “going the extra mile”.

Where an employee is entitled to an enhanced pension for early retirement on grounds of ill-health, the employer should consider this as an alternative to dismissal (First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182).

The steps an employer must take before dismissal depend on individual circumstances, but should normally include:

• investigating the reasons for the absence. This will nearly always include seeking expert medical guidance (with the employee’s consent), looking at the employee’s condition and prognosis, the likelihood of a successful return and any steps the employer could reasonably take to support that return;

• consulting the employee;

• looking at alternative work; and

• warning the employee clearly that continued or further absence may result in dismissal.

Dismissing an employee without consultation is likely to make the dismissal unfair (East Lindsey District Council v Daubney [1977] IRLR 181).

As with any other dismissal, a dismissal due to sickness or injury must be reasonable in all the circumstances (Section 98 (4) ERA 96). Tribunals will take into account factors such as:

• the size and resources of the employer;

• difficulties arranging for short-term replacements;

• importance of the role;

• length of service;

• previous attendance record; and

• the nature of the illness

Although length of service is relevant when assessing the fairness of a dismissal following a long sickness absence, in BS v Dundee City Council [2013] CSIH 91, the court suggested that it is only useful in so far as it tells the employer something about the likelihood of the employee returning to work within a reasonable period, for example, because of a previous good attendance record.

Where there is a sickness absence policy providing guidance on how absences should be dealt with, the employer should follow it. A sickness absence procedure is unlikely to be contractual. Nevertheless, an unreasonable failure to follow it is likely to make a dismissal unfair.

An employee can be dismissed even if they have a current medical certificate and are still receiving sick pay.

An employer is obliged to take reasonable steps to discover the true medical position before dismissing. However, a failure to consult with the employee’s GP is not an absolute guarantee that any resulting dismissal will be unfair. The obligation is to carry out “such medical investigations as a sensible in all the circumstances” (BS v Dundee City Council [2013] CSIH 91). The key question is always: how long would a reasonable employer wait before deciding to dismiss? (Spencer v Paragon Wallpapers [1977] ICR 301).

There is no positive duty on the employee to inform the employer of the prospects of recovery (Mitchell v Arkwood Plastics [1993] ICR 471, Perry v Imperial College Healthcare NHS Trust [2011] UKEAT/0473/10). Even so, the employee’s own views as to their prospects for a successful return to work are likely to be a key factor in deciding whether or not it is reasonable to wait longer before dismissing. It is much harder for an employer to dismiss for ill health where a member has kept the employer updated, and is positive about their prospects for a return to work once they are well, as the following case illustrates:

It is sensible to cooperate with an employer’s attempts to discover the medical position. An unreasonable failure to cooperate, for example, refusing to attend a medical examination by a company doctor for no good reason, can result in lost sick pay and may lead the employer to carry out a fair dismissal on the basis of the information available.

Depending what the contract says, refusing to attend a medical examination may also be a breach of an express term of the employment contract.

A claim for unfair dismissal due to sickness or sickness absence requires at least two years’ continuous employment. See Chapter 10 for more details. No service is required for a claim of disability discrimination.